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Back to Form 10-Q
Exhibit
10.4
WELLCARE
HEALTH PLANS, INC.
2004 EQUITY
INCENTIVE PLAN
RESTRICTED
STOCK AGREEMENT
FOR
CHARLES G.
BERG
This RESTRICTED STOCK AGREEMENT
(the “Agreement”)
is made and entered into effective as of August 10, 2009, by and between
WellCare Health Plans, Inc., a Delaware corporation (the “Company”),
and Charles G. Berg (the “Grantee”).
RECITALS
In consideration of services to be
rendered by the Grantee and to provide an incentive to the Grantee to remain
with the Company and its Subsidiaries, it is in the best interests of the
Company to make a grant of Restricted Stock to Grantee in accordance with the
terms of this Agreement; and
The Restricted Stock is granted
pursuant to the WellCare Health Plans, Inc. 2004 Equity Incentive Plan (the
“Plan”)
which is incorporated herein for all purposes. The Grantee hereby
acknowledges receipt of a copy of the Plan. Unless otherwise provided
herein, terms used herein that are defined in the Plan and not defined herein
shall have the meanings attributable thereto in the Plan.
NOW, THEREFORE, for and in
consideration of the mutual premises, covenants and agreements contained herein,
and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto, intending to be legally bound,
hereby agree as follows:
1. Award of Restricted
Stock. The Company has granted on August 10, 2009 (the “Date of
Grant”), to the Grantee, 125,000 shares of common stock, par value $.01
per share, of the Company (collectively, the “Restricted
Stock”), which Restricted Stock is and shall be subject to the terms,
provisions and restrictions set forth in this Agreement and in the
Plan. The Grantee agrees to be bound by all of the terms and
conditions herein and in the Plan. However, in the event of any
conflict between the provisions of this Agreement and the Plan, the provisions
of this Agreement shall govern.
2. Vesting of Restricted
Stock.
(a) Except
as otherwise provided in Section 3 hereof, one hundred percent (100%) of
the Restricted Stock will vest on December 31, 2010 (the “Vesting
Date”), provided that the Grantee’s employment or service with the
Company and its Subsidiaries continues through and on the Vesting
Date.
(b) Except
as otherwise provided in Section 3 hereof, there shall be no proportionate
or partial vesting of Restricted Stock in or during the months, days or periods
prior to the Vesting Date, and all vesting of Restricted Stock shall occur only
on the Vesting Date.
3. Termination of
Employment
(a) Except
as otherwise provided below, upon the termination or cessation of Grantee’s
employment or service with the Company and its Subsidiaries, for any reason
whatsoever, any portion of the Restricted Stock which is not yet then vested,
and which does not then become vested pursuant to this Section 3, shall
automatically and without notice terminate, be forfeited and become null and
void.
(b) Notwithstanding
the foregoing, in the event that the Grantee’s employment with the Company and
its Subsidiaries is terminated by the Company without Cause or by the Grantee
for Good Reason, any portion of the Restricted Stock that is unvested as of the
date of the termination of Grantee’s employment with the Company and its
Subsidiaries (the “Date of
Termination”) shall become immediately vested as of the Date of
Termination.
(c) Notwithstanding
any other term or provision of this Agreement, in the event of a Change in
Control of the Company any unvested Restricted Stock that is then outstanding
shall become immediately vested.
(d) Notwithstanding
any other term or provision of this Agreement, in the event that the Grantee’s
employment or service with the Company and its Subsidiaries is terminated on
account of the Grantee’s death or Disability, any unvested portion of the
Restricted Stock shall become immediately vested as of the Date of
Termination.
(e) For
purposes of this Agreement, the terms “Cause”, “Good
Reason,” and “Disability”
shall have the meanings set forth in the amended and restated
employment agreement between the Grantee, the Company and Comprehensive Health
Management, Inc. dated August 10, 2009 (the “Employment
Agreement”) and the determination of whether a termination of employment
or service is for Cause, for Good Reason or on account of Disability shall be
determined under the Employment Agreement.
(f) Notwithstanding
any other term or provision of this Agreement but subject to the provisions of
the Plan, the Committee shall be authorized, in its sole discretion, based upon
its review and evaluation of the performance of the Grantee and of the Company
and its Subsidiaries, to accelerate the vesting of all or any portion of the
Restricted Stock under this Agreement, at such times and upon such terms and
conditions as the Committee shall deem advisable.
4. Delivery of Restricted
Stock. The Company shall make a book entry in its stock ledger
for the Restricted Stock registered in the Grantee’s name. Upon
vesting, certificates for the Restricted Stock will be issued in the name of the
Grantee and shall be delivered to the Grantee’s address on record with the
Company or to such other address as the Grantee may instruct the
Company.
5. Rights with Respect to
Restricted Stock.
(a) Except
as otherwise provided in this Agreement, the Grantee shall have, with respect to
all of the shares of Restricted Stock, whether vested or unvested, all of the
rights of a holder of shares of common stock of the Company, including without
limitation (i) the right to vote such Restricted Stock, (ii) the right
to receive dividends, if any, as may be declared on the Restricted Stock from
time to time, and (iii) the rights available to all holders of shares of
common stock of the Company upon any merger, consolidation, reorganization,
liquidation or dissolution, stock split-up, stock dividend or recapitalization
undertaken by the Company.
(b) In
the event that the Committee shall determine that any stock dividend, stock
split, share combination, extraordinary cash dividend, recapitalization,
reorganization, merger, consolidation, split-up, spin-off, combination, exchange
of shares, warrants or rights offering to purchase Common Stock at a price
substantially below fair market value, or other similar corporate event affects
the Common Stock such that an adjustment is required in the number of shares of
Restricted Stock in order to preserve, or to prevent the enlargement of, the
benefits or potential benefits intended to be made available under this Award,
then the Committee shall, in its sole discretion, and in such manner as the
Committee may deem equitable, adjust any or all of the number and kind of shares
of Restricted Stock and/or, if deemed appropriate, make provision for a cash
payment to the Grantee, provided, however, that, unless the Committee determines
otherwise, the number of shares of Restricted Stock subject to this Award shall
always be a whole number.
(c) Notwithstanding
any term or provision of this Agreement to the contrary, the existence of this
Agreement, or of any outstanding Restricted Stock awarded hereunder, shall not
affect in any manner the right, power or authority of the Company to make,
authorize or consummate: (i) any or all adjustments, recapitalizations,
reorganizations or other changes in the Company’s capital structure or its
business; (ii) any merger, consolidation or similar transaction by or of
the Company; (iii) any offer, issue or sale by the Company of any capital
stock of the Company, including any equity or debt securities, or preferred or
preference stock that would rank prior to or on parity with the Restricted Stock
and/or that would include, have or possess other rights, benefits and/or
preferences superior to those that the Restricted Stock includes, has or
possesses, or any warrants, options or rights with respect to any of the
foregoing; (iv) the dissolution or liquidation of the Company; (v) any
sale, transfer or assignment of all or any part of the stock, assets or business
of the Company; or (vi) any other corporate transaction, act or proceeding
(whether of a similar character or otherwise).
6. Transferability. Unless
otherwise determined by the Committee, the shares of Restricted Stock are not
transferable until and unless they become vested in accordance with this
Agreement. The terms of this Agreement shall be binding upon the
executors, administrators, heirs, successors and assigns of the
Grantee. Any attempt to effect a Transfer of any shares of Restricted
Stock prior to the date on which the shares of Restricted Stock become vested
shall be void ab
initio. For purposes of this Agreement, “Transfer” shall mean
any sale, transfer, encumbrance, gift, donation, assignment, pledge,
hypothecation, or other disposition, whether similar or dissimilar to those
previously enumerated, whether voluntary or involuntary, and including, but not
limited to, any disposition by operation of law, by court order, by judicial
process, or by foreclosure, levy or attachment.
7. Tax Withholding
Obligations.
(a) The
Company shall withhold a number of shares of the Company’s common stock (rounded
up) otherwise deliverable to the Grantee having a Fair Market Value sufficient
to satisfy the statutory minimum of all or part of the Grantee’s estimated total
federal, state and local tax obligations associated with the award or vesting of
the Restricted Stock; provided, however, the
Grantee may elect, by providing the Company with at least two weeks prior
notice, to satisfy such tax withholding obligations by depositing with the
Company an amount of cash equal to the amount determined by the Company to be
required with respect to any withholding taxes, FICA contributions or the like
under federal, state or local statute, ordinance rule or regulation in
connection with the award or vesting of the Restricted
Stock. Alternatively, the Company may, in its sole discretion and to
the extent permitted by law, deduct from any payment of any kind otherwise due
to the Grantee any federal, state or local taxes of any kind required by law to
be withheld with respect to the Restricted Stock.
(b) Tax
consequences on the Grantee (including without limitation federal, state, local
and foreign income tax consequences) with respect to the Restricted Stock
(including without limitation the grant, vesting and/or forfeiture thereof) are
the sole responsibility of the Grantee. The Grantee shall consult
with his or her own personal accountant(s) and/or tax advisor(s) regarding these
matters, the making of a Section 83(b) election and the Grantee’s filing,
withholding and payment (or tax liability) obligations.
8. Amendment, Modification and
Assignment; Non-Transferability. This Agreement may only be
modified or amended in a writing signed by the parties hereto. No
promises, assurances, commitments, agreements, undertakings or representations,
whether oral, written, electronic or otherwise, and whether express or implied,
with respect to the subject matter hereof, have been made by either party which
are not set forth expressly in this Agreement. Unless otherwise
consented to in writing by the Company, in its sole discretion, this Agreement
(and Grantee’s rights hereunder) may not be assigned, and the obligations of
Grantee hereunder may not be delegated, in whole or in part. The
rights and obligations created hereunder shall be binding on the Grantee and his
heirs and legal representatives and on the successors and assigns of the
Company.
9. Complete
Agreement. This Agreement (together with those agreements and
documents expressly referred to herein, for the purposes referred to herein)
embody the complete and entire agreement and understanding between the parties
with respect to the subject matter hereof, and supersede any and all prior
promises, assurances, commitments, agreements, undertakings or representations,
whether oral, written, electronic or otherwise, and whether express or implied,
which may relate to the subject matter hereof in any way.
10. Miscellaneous.
(a) No Right to Continued
Employment or Service. This Agreement and the grant of
Restricted Stock hereunder shall not confer, or be construed to confer, upon the
Grantee any right to employment or service, or continued employment or service,
with the Company or any Subsidiary.
(b) No Limit on Other
Compensation Arrangements. Nothing contained in this Agreement
shall preclude the Company or any Subsidiary from adopting or continuing in
effect other or additional compensation plans, agreements or arrangements, and
any such plans, agreements and arrangements may be either generally applicable
or applicable only in specific cases or to specific persons.
(c) Severability. If
any term or provision of this Agreement is or becomes or is deemed to be
invalid, illegal or unenforceable in any jurisdiction or under any applicable
law, rule or regulation, then such provision shall be construed or deemed
amended to conform to applicable law (or if such provision cannot be so
construed or deemed amended without materially altering the purpose or intent of
this Agreement and the grant of Restricted Stock hereunder, such provision shall
be stricken as to such jurisdiction and the remainder of this Agreement and the
award hereunder shall remain in full force and effect).
(d) No Trust or Fund
Created. Neither this Agreement nor the grant of Restricted
Stock hereunder shall create or be construed to create a trust or separate fund
of any kind or a fiduciary relationship between the Company or any Subsidiary
and the Grantee or any other person. To the extent that the Grantee
or any other person acquires a right to receive payments from the Company or any
Subsidiary pursuant to this Agreement, such right shall be no greater than the
right of any unsecured general creditor of the Company.
(e) Electronic Delivery and
Signatures. Grantee hereby consents and agrees to electronic
delivery of any Plan documents, proxy materials, annual reports and other
related documents. If the Company establishes procedures for an
electronic signature system for delivery and acceptance of Plan documents
(including documents relating to any programs adopted under the Plan), Grantee
hereby consents to such procedures and agrees that his or her electronic
signature is the same as, and shall have the same force and effect as, his or
her manual signature. Grantee consents and agrees that any such
procedures and delivery may be effected by a third party engaged by the Company
to provide administrative services related to the Plan, including any program
adopted under the Plan.
(f) Law
Governing. This Agreement shall be governed by and construed
and enforced in accordance with the internal laws of the State of Delaware
(without reference to the conflict of laws rules or principles
thereof).
(g) Interpretation. The
Grantee accepts the Restricted Stock subject to all of the terms, provisions and
restrictions of this Agreement and the Plan. Except as otherwise set
forth in Section 3(e) above or unless a Change in Control shall have occurred,
the undersigned Grantee hereby accepts as binding, conclusive and final all
decisions or interpretations of the Committee upon any questions arising under
this Agreement.
(h) Headings. Section,
paragraph and other headings and captions are provided solely as a convenience
to facilitate reference. Such headings and captions shall not be
deemed in any way material or relevant to the construction, meaning or
interpretation of this Agreement or any term or provision hereof.
(i) Notices. Any
notice under this Agreement shall be in writing and shall be deemed to have been
duly given when delivered personally or when deposited in the United States
mail, registered, postage prepaid, and addressed, in the case of the Company, to
the Company’s Secretary at 8735 Henderson Road, Ren Two, Tampa, Florida 33634,
or if the Company should move its principal office, to such principal office,
and, in the case of the Grantee, to the Grantee’s last permanent address as
shown on the Company’s records, subject to the right of either party to
designate some other address at any time hereafter in a notice satisfying the
requirements of this Section.
(j) Non-Waiver of
Breach. The waiver by any party hereto of the other party’s
prompt and complete performance, or breach or violation, of any term or
provision of this Agreement shall be effected solely in a writing signed by such
party, and shall not operate nor be construed as a waiver of any subsequent
breach or violation, and the waiver by any party hereto to exercise any right or
remedy which he or it may possess shall not operate nor be construed as the
waiver of such right or remedy by such party, or as a bar to the exercise of
such right or remedy by such party, upon the occurrence of any subsequent breach
or violation.
(k) Counterparts. This
Agreement may be executed in two or more separate counterparts, each of which
shall be an original, and all of which together shall constitute one and the
same agreement.
* * * * *
* * *
IN
WITNESS WHEREOF, the parties hereto, intending to be legally bound, have
executed this Agreement as of the date first written above.
WELLCARE HEALTH PLANS,
INC.
By: /s/ Thomas F. O’Neil
III
Name: Thomas F. O’Neil III
Title: Vice Chairman
Grantee
acknowledges receipt of a copy of the Plan. Grantee has reviewed the
Plan and this Agreement in their entirety, has had an opportunity to obtain the
advice of counsel prior to executing this Agreement, and fully understands all
provisions of this Agreement.
GRANTEE:
By: /s/ Charles G.
Berg
Charles G. Berg